The Idaho Capitol building, Monday, Jan. 23, 2023, in Boise.
A bill that would criminalize helping minors obtain an abortion without parental consent won final passage in Idaho's legislature on Thursday and is headed to the desk of Republican Gov. Brad Little.
The measure would be the first of its kind in the U.S. It seeks to restrict travel by creating the crime of “ abortion trafficking ” and would bar adults from obtaining abortion pills for a minor or “recruiting, harboring or transporting the pregnant minor” without the consent of the minor's parent or guardian.
Anyone convicted of breaking the law would face two to five years in prison and could also be sued by the minor's parent or guardian. Parents who raped their child would not be able to sue, though the criminal penalties for anyone who helped the minor obtain an abortion would remain in effect.
To sidestep violating a constitutional right to travel between states, Idaho’s law would make illegal only the in-state segment of a trip to an out-of-state abortion provider.
Once it lands on his desk, the governor will have five days to either sign or veto the bill or allow it to become law without his signature. Little is against abortion and has supported Idaho’s stringent abortion bans.
Opponents are promising a legal battle if the bill becomes law.
“Whether it comes from us or one of our coalition partners, there will be a legal challenge,” Mack Smith, a spokesperson for Planned Parenthood Alliance Advocates, said. “We definitely will be fighting this with everything that we’ve got. There is just absolutely no way that this is constitutional.”
Idaho is one of 13 states that already effectively ban abortion in all stages of pregnancy, and is one of a handful of states that already have laws penalizing those who help people of any age obtain abortions.
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During the Senate debate Thursday morning, Democratic Sen. Melissa Wintrow said the legislation “further shackles young girls that need help,” and harms those who try to help them.
"I think we all know that Idaho has the strictest abortion bans in the country,” Wintrow said. “It is criminal, it is totally banned, and this bill adds insult to injury in my estimation.”
But Sen. Todd Lakey, a Republican and a co-sponsor of the bill, said it will “help protect our kids. It does help prevent and protect against abortion, especially those that occur without consent of a parent in another state.”
The legislation would give the attorney general the authority to prosecute people for violating the law if the county prosecutor, which would normally handle criminal cases, declines to press charges.
People accused of abortion trafficking wouldn't necessarily be able to avoid charges by showing that the minor's parent approved of the travel. Instead, they would be able to use that information as an “affirmative defense" by attempting to prove in court that the minors' parents or guardians signed off on the plan.
Rep. Chris Mathias, a Democrat, noted Idaho's rape and incest rates are at a “five year high,” and many of those victims are minors who have been victimized by a parent. The Idaho State Police “Crime in Idaho” annual report showed a nearly 12% increase in rape or attempted rape reports in 2021 compared to the previous year, as well as 28 cases of reported incest — compared to three incest reports made in 2020 and 14 in 2019.
The bill requires that both parents be informed of a plan to take a minor out of state for an abortion, Mathias said, even if one of the parents is “potentially a felonious, incestuous, rapist father.”
Democratic Sen. James Ruchti said the legislation would likely be difficult to enforce. He compared it to a hypothetical scenario, in which a neighboring state might attempt to bar its own residents from traveling to Idaho to buy a gun.
“It’s probably why we let federal laws handle these things when it comes to crossing borders,” Ruchti said.
State leaders in Washington, Oregon and California have promoted the West Coast as a safe haven for abortion procedures, and lawmakers in Oregon and Washington are considering bills to shield abortion providers and patients from criminal liability. Oregon's bill would allow physicians to provide abortion to anyone regardless of age, and would bar them in certain cases from disclosing that information to parents.
National Right to Life, an anti-abortion organization, lauded the bill as protecting parental rights by keeping parents involved in a child's decisions.
“Parents have the right to love their daughter and be there for her in her time of need,” National Right to Life president Carol Tobias wrote in a news release. “No one should take that away.”
Thirty-six states require parental involvement in a minor’s decision to have an abortion, though most allow exceptions under certain circumstances like medical emergencies, according to the Guttmacher Institute, a research group supporting abortion rights.
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AP writers Geoff Mulvihill in Cherry Hill, New Jersey and John Hanna in Topeka, Kansas, contributed.
